BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
(Buchanan) - School Employees: Dismissal or Suspension
Amended: May 20, 2014 Policy Vote: Education 9-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2014 Consultant: Jacqueline
Wong-Hernandez
SUSPENSE FILE.
Bill Summary: AB 215 modifies the suspension and dismissal
procedures for certificated school employees who have attained
permanent status.
Fiscal Impact: This bill has the potential to result in both
costs and savings to the state and to local education agencies
(LEAs). The costs and savings realized will depend on the
actions of individual parties in specific cases, and will vary
by action and year (as is true under existing law). It is
unclear whether a streamlined dismissal process will increase
the number of cases brought forth.
Office of Administrative Hearings (OAH): Approximately $2
million annually in ongoing personnel costs for 13 PYs. The
OAH estimates it would require 8 additional administrative
law judges (ALJs), three additional clerical staff, one
associate governmental programs analyst, and one additional
legal support supervisor, to complete the substantial
additional workload imposed by this bill. The cost of the
ALJs' time related to these hearings would be billed by the
OAH to the involved LEAs and the General Fund, depending on
the dispensation of the case. See staff comments.
LEAs: Significant increased workload and costs to abide by
new rules. Potentially substantial savings in reduced
liability (in civil litigation) to the extent that certified
employees who commit egregious acts of misconduct against
children can be dismissed more quickly and with reduced
incentive to appeal.
Mandate: Potentially significant reimbursable mandate on
LEAs, to the extent that certificated employees are accused
of committing controlled substance offenses involving
marijuana, mescaline, peyote, or tetrahydrocannabinols, and
placed on mandatory leave.
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Background: Existing law prohibits the dismissal of a
certificated employee who has achieved permanent status except
for one or more of the following causes: a) Immoral or
unprofessional conduct; b) commissioning, aiding, or advocating
the commission of acts of criminal syndicalism; c) dishonesty;
d) unsatisfactory performance; e) evident unfitness for service;
f) physical or mental condition unfitting him or her to instruct
or associate with children; g) persistent violation of or
refusal to obey state laws or regulations pertaining to schools;
h) conviction of a felony or of any crime involving moral
turpitude; i) violation of the prohibition against advocating or
teaching communism with the intent to indoctrinate or inculcate
in the mind of any pupil a preference for communism; j) knowing
membership in the Communist Party; or, k) alcoholism or other
drug abuse which makes the employee unfit to instruct or
associate with children. (Education Code § 44932)
Existing law requires a governing board to notify an employee in
writing of its intention to dismiss or suspend him or her at the
expiration of 30 days unless the employee demands a hearing.
Current law prohibits a 30-day Notice of Intent to Dismiss or
Suspend (30-day Notice) from being given between May 15 and
September 15 in any year. (EC § 44934 and EC § 44936)
Additionally, before a governing board can take action to issue
a 30-day Notice for unprofessional conduct or unsatisfactory
performance, the following must occur:
Unprofessional Conduct : The employee must be given advance
notice of at least 45 days, and the notice must specify the
nature of the cause, list specific instances of behavior, and
furnish the employee an opportunity to correct the faults and
overcome the grounds of the charge. (EC § 44938(a))
Unsatisfactory Performance : The employee must be given advance
notice of at least 90 days, and the notice must specify the
nature of the performance issues, with specific instances of
behavior with "such particularity" as to furnish the employee an
opportunity to correct his or her faults and overcome the
grounds for the charge. (EC § 44938(b))
Existing law authorizes immediate suspension of a permanent
employee for specified conduct, and requires that a dismissal or
suspension hearing requested by an employee must begin within 60
days of an employee's request. Additionally, the hearing must be
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conducted by a Commission on Professional Competence (CPC) made
up of three members: 1) One member selected by the employee; 2)
one member selected by the governing board; and, 3) an ALJ who
serves as the chair.
Existing law establishes certain crimes as "mandatory leave of
absence offenses" and requires school districts to place an
employee criminally charged with those offenses on a compulsory
leave of absence. Mandatory offenses include sex offenses
specified in EC § 44010 and offenses involving aiding or
abetting the unlawful sale, use, or exchange to minors of
specified controlled substances with the exception of marijuana,
mescaline, peyote, or tetrahydrocannabinols. (EC § 44940 and §
44940.5)
The decision made by the CPC is made by majority vote and is
deemed to be the final decision of the governing board. Existing
law also prohibits testimony or evidence relating to matters
that occurred more than four years prior to the date of the
filing of the notice, and prohibits a decision relating to the
dismissal or suspension of any employee from being made based on
charges or evidence of any nature relating to matters occurring
more than four years prior to the filing of the notice.
Members of a CPC receive their regular salary, fringe benefits,
accumulated sick leave and other leaves and benefits, but
receive no additional compensation. If the result is that the
employee is dismissed or suspended, the employee will share
equally the expenses of the hearing including the cost of the
ALJ. If the employee is not dismissed or suspended, the
governing board will pay the expenses of the hearing, including
the cost of the ALJ, the cost of the educators serving on the
CPC, and reasonable attorney fees incurred by the employee. (EC
§ 44944)
Proposed Law: This bill makes numerous changes to the suspension
and dismissal procedures for certificated school employees who
have attained permanent status, and establishes a separate set
of procedures for employees charged with egregious misconduct,
as defined by this bill.
This bill requires the dismissal process for proceedings based
solely on charges of egregious misconduct as follows:
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1) Provides that the governing board of school district,
upon the filing or
formulation of written charges, may immediately suspend the
employee without pay from his or her duties and give notice
of the suspension, and 30 days after service of the notice
of dismissal, the employee will be dismissed unless he or
she demands a hearing.
2) Requires any written statement of charges to specify
instances of behavior and the acts or omissions
constituting the charge so that the employee will be able
to prepare his or her defense.
3) Allows a 30-day Notice to be given at any time of the
year, and establishes delivery requirements for a 30-day
Notice given outside of the instructional year.
4) Prohibits LEAs from entering into an agreement that
would authorize expunging from a school employee's
personnel file credible complaints of, substantiated
investigations into, or discipline for, egregious
misconduct, as specified.
5) Requires an LEA that has made a report of an employee's
egregious misconduct to the Commission on Teacher
Credentialinf to disclose this fact to another LEA
considering an application for employment from the
employee, upon inquiry.
6) Requires the notice of suspension and intention to
dismiss that is based on charges of egregious misconduct to
be in writing and served upon the employee personally or by
United States registered mail.
7) Provides that the dismissal and suspension process
initiated for the acts or events constituting the charge of
egregious misconduct shall not be used to support any
additional or subsequent notice of suspension or dismissal,
as specified. Establishes specific rights of discovery.
8) Provides that the dismissal or suspension process
initiated, as specified, shall be the exclusive means of
pursuing a dismissal or suspension against the certificated
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employee until a written decision has been reached by the
ALJ.
9) Specifies that the hearings shall be initiated and
conducted, and a decision made, by an ALJ.
10) Requires the hearing to commence within 60 days from the
date of the employee's demand for a hearing, as specified.
11) Requires the OAH to prioritize the scheduling of
dismissal or suspension proceedings based on charges of
egregious misconduct over other proceedings.
12) Provides that a witness shall not be permitted to
testify at the hearing except upon oath or affirmation, and
allows testimony and evidence relating to matters that
occurred more than 4 years prior, as specified.
13) Requires the ALJ to prepare a written decision
containing findings of fact, determinations of issues, and
a disposition that is one of the following: a) the employee
is dismissed; b) the employee should be suspended for a
specific period of time without pay; or, c) the employee
should not be dismissed or suspended.
14) Provides various requirements regarding the hearing and
the decision of the ALJ, including the requirement that his
or her decision shall be deemed to be the final decision of
the governing board of the school district.
15) Provides that if the ALJ determines the employee should
be dismissed or suspended, the school district and the
state shall share equally the expenses of the hearing,
including the cost of the ALJ, and the employee and the
school district shall pay their own attorney's fees. If the
ALJ determines that the employee should not be dismissed or
suspended, the school district shall pay the expenses of
the hearing, including the cost of the ALJ, and reasonable
attorney's fees incurred by the employee.
16) Provides that the decision in a dismissal or suspension
proceeding may, on petition of either the school district
or employee, be reviewed by a court of competent
jurisdiction.
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With regard to dismissal for all charges, this bill:
1) Provides that if the governing board of the school
district has given notice to a permanent employee of its
intention to dismiss or suspend him or her, based upon
written charges filed or formulated, the charges may be
amended less than 90 days before the hearing on the charges
only upon a showing of good cause. If a motion to amend
charges is granted by the ALJ, the employee shall be given
a meaningful opportunity to respond to the amended charges.
2) Provides that a notice of the governing board to dismiss
or suspend an employee, together with written charges filed
or formulated, shall be sufficient to initiate a hearing,
as specified, and the governing board shall not be required
to file or serve a separate accusation.
3) Removes Communist Party membership from the list of
reasons a permanent school employee can be dismissed or
suspended; removes marijuana, mescaline, peyote, and
tetrahydrocannabinols as exceptions to the list of
controlled substance offenses for which a certificated
employee may be charged with a mandatory or optional leave
of absence offense; adds murder and attempted murder to the
list of mandatory leave of absence offenses.
4) Provides that an employee who has been placed on
suspension may serve and file with the OAH a motion for
immediate reversal of suspension, as specified.
5) Requires that review of the motion shall be limited to a
determination as to whether the facts as alleged in the
statement of charges, if true, are sufficient to constitute
a basis for immediate suspension.
6) Requires the ALJ to issue an order denying or granting
the motion no later than 15 days after the hearing;
requires an order granting a motion for immediate reversal
of suspension to become effective within 5 days of service
of the order and the school district to make the employee
whole, as specified, within 14 days of service of an order
granting the motion.
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7) Provides that a motion shall be the exclusive means of
obtaining interlocutory review of suspension pending
dismissal and that the grant or denial of the motion shall
not be subject to interlocutory judicial review.
8) Specifies that a dismissal or dismissal hearing shall
commence within six months from the date of the employee's
request for a hearing; provides that a continuance shall
not extend the hearing date more than 6 months from the
date of the employee's request for a hearing, except for
extraordinary circumstances, as determined by the ALJ.
9) Requires the hearing to be completed by a closing of the
record within 7 months of the date of the employee's demand
for a hearing; provides that a continuance shall not extend
the date for the close of the record more than 7 months
from the date of the employee's request for a hearing,
except for good cause as determined by the ALJ.
10) Provides that if substantial progress has been made in
completing the hearing within the 7-month period but the
hearing cannot be completed, for good cause shown, within
the 7-month period, the period for completing the hearing
may be extended by the ALJ and he or she shall establish a
reasonable timetable for the hearing completion and closing
of the record.
11) Deletes the existing discovery process that includes the
rights and duties of any party in a civil action brought in
a Superior Court under Title 4 of Part 4 of the Code of
Civil Procedure; creates a new discovery process where the
school district and employee are required to make initial
disclosures within 45 days of the date of the employee's
demand for a hearing; and specifies that all disclosures
must be made no later than 60 days before the start of the
hearing, as specified.
12) Authorizes testimony or evidence and decisions to be
made relating to matters that occurred more than 4 years
prior to the date of the filing of the notice that involve
sexual offenses and child abuse offenses, as specified.
13) Authorizes the suspension and dismissal hearing to be
conducted by a single ALJ instead of the full CPC if both
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parties agree in writing.
14) Reduces the number of years of experience that CPC
members are required to have in the discipline of the
employee being suspended or dismissed from 5 to 3.
15) Requires members of the CPC to be selected no later than
45 days before the start of the hearing; and requires the
governing board and the employee to serve notice of their
selection upon all parties and the OAH. Specifies objection
procedures and timeline.
16) Deletes the requirement that the employee pay the
expenses incurred by the school district at the hearing if
a court overturns the decision of a CPC; and deletes the
requirement that the district pay the expenses incurred by
the employee at the hearing if a court overturns the
decision of a CPC.
Related Legislation: AB 375 (Buchanan) 2013 was substantially
similar to this bill. That bill was vetoed by Governor Brown,
with the following message:
The goal of this bill is to simplify the process for hearing
and deciding teacher dismissal cases. I have listened at
great length to arguments both for and against this measure.
While I agree that it makes worthwhile adjustments to the
dismissal process, such as lifting the summer moratorium on
the filing of charges and eliminating some opportunities for
delay, other changes make the process too rigid and could
create new problems.
I am particularly concerned that limiting the number of
depositions to five per side, regardless of the
circumstances, and restricting a district's ability to amend
charges even if new evidence comes to light, may do more harm
than good.
I share the authors' desire to streamline the teacher
discipline process, but this bill is an imperfect solution. I
encourage the Legislature to continue working with
stakeholders to identify changes that are balanced and reduce
procedural complexities.
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SB 531 (Knight) 2013 would have modified procedures relating to
the evaluation, suspension, and dismissal of certificated
employees. That bill failed passage in the Senate Education
Committee.
SB 453 (Huff) 2013 would have modified procedures relating to
the suspension, dismissal and leave of absence of employees.
That bill failed passage in the Senate Education Committee.
SB 1530 (Padilla) 2012 would have modified procedures relating
to the suspension, dismissal, and leave of absence of employees.
That bill failed passage in the Assembly Education Committee.
Staff Comments: This bill makes numerous changes to statute
governing the dismissal or suspension of certificated school
employees, only a some of which would result in fiscal impacts.
To the extent that these changes streamline the dismissal
process, LEAs will likely realize savings, which will allow them
to spend their (mostly Proposition 98 General Fund) money on
other educational purposes. To the extent that the bill makes
certain dismissals more cumbersome or difficult to achieve,
there will be costs to LEAs, including costs to settle cases
they cannot afford to defend.
AB 215 imposes substantial additional duties on the OAH. The
bill requires an ALJ to review certificated employees' motions
to reverse suspensions and, specifically, that a hearing be
conducted and a written ruling issued in a specified timeframe.
Currently, that action would be taken in a superior court. This
bill also requires an ALJ to review amendments to written
charges filed by the LEA (which is not required under existing
law), and expands requirements for pre-hearing disclosures of
evidence and witnesses to be reviewed by an ALJ. Currently, the
OAH handles about 175 certified employee dismissal cases per
year, and this bill would expand the OAH's duties with regard to
each of those cases, and potentially result in increased cases.
This bill also requires the OAH to prioritize egregious
misconduct dismissal hearings, increasing the need for ALJs and
increasing the Office's scheduling workload.
The ALJ would be responsible for hearing and ruling on discovery
disputes. Discovery disputes are common, and are often handled
in superior courts. The ALJ would review teachers' motions to
reverse suspensions, hold a required hearing on the issue, and
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issue a written ruling; this is also often handled by superior
courts. Increased work and costs to the OAH would likely trade
off with decreased work for superior courts, but LEAs do not pay
for actual superior court judge time in the direct way they pay
for ALJ time.
Currently, the full cost of ALJ time related to hearings is
billed to school districts. In 2012-13, the OAH billed
$1,072,246 for the cost of providing the ALJ for these hearings.
Under this bill, if the CPC rules in favor of the LEA, the cost
of the hearing would be split 50/50 between the school district
and "the state." In context, "the state" likely means the
General Fund because the bill retains the existing language
providing that "the Controller shall pay all claims submitted
pursuant to this paragraph from the General Fund."
This bill requires the commencement of a dismissal hearing
within six months from the date of the employee's request for a
hearing unless the ALJ determines that "extraordinary
circumstances" exist. It also requires dismissal and suspension
proceedings to conclude no more than seven months from the date
an employee demands a hearing unless the ALJ determines that
good cause exists. These provisions are likely to make the OAH
dispense with most proceedings more quickly. In circumstances
where an LEA needs more time, however, it will have to argue as
much before the ALJ, which could result in additional expense.
If the ALJ denies the extension, an LEA will have to proceed
without having a complete case, or to drop the case and start
again. To the extent that the tightened timeline results in LEAs
dismissing certified employees more quickly who are otherwise on
paid administrative leave, and whose classes are simultaneously
being covered by paid substitute teachers, LEAs will realize
savings. This bill also clarifies that egregious misconduct can
result in suspension without pay, which could result in savings
to LEAs, in certain circumstances.
This bill also creates a new state reimbursable mandate.
Existing law which specifies the offenses for which a
certificated employee must be immediately placed on a mandatory
leave of absence (pending a hearing, in most cases) includes
offenses involving aiding or abetting the unlawful sale, use, or
exchange to minors of controlled substances, but specifically
excludes marijuana, mescaline, peyote, or tetrahydrocannabinols.
This bill strikes that statutory exception for the identified
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controlled substances. In so doing, it requires school districts
to place employees on mandatory leaves of absence for a new set
of offenses.
Because this would be a new state mandate to place employees on
leaves of absence for offenses which would not have previously
triggered the action, school districts could file a test claim
for reimbursement for expenses related to that mandate, such as
the cost of substitute teachers and, potentially, the cost of
suspension and dismissal hearings for those specific offenses.
State costs would depend upon the number of certificated
employees accused of committing controlled substance offenses
involving marijuana, mescaline, peyote, or
tetrahydrocannabinols.